Category: Constitutional Law

Acting ultra vires through the application of executive powers is not something alien to public authority decision-making but it is equally important that those seeking legal review are clear as to exactly what has constituted a breach of their jurisdiction.

During the period following the second world war there were three Acts that affected the opening times of cinematograph houses across the UK. The first was the Cinematograph Act 1909, the second was the Sunday Entertainments Act 1932 and third was Defence Regulation 42B which was introduced during the war but remained effective until late 1947.

When it was decided by an issuing local authority to grant a trading licence to their local picture house there came with it restrictions preventing any attendance by children aged below fifteen years of age regardless of whether they were accompanied by an adult. While appreciative of the opportunity to open on a day typically reserved for domestic pursuits the appellants sought judicial review on grounds that such a restriction was self-defeating and thereby ‘unreasonable’.

As there were three Acts from which to rely upon it was agreed that for the purposes of clarity the Sunday Entertainments Act was the most appropriate, and yet within the terms prescribed, s.1 ss.1 provided that the issue of a licence was “subject to such conditions as the authority think fit to impose.” This it was agreed allowed the local authority to apply its discretion to the limitations of the permit and so by extension it had acted accordingly.

When heard in the first instance the court dismissed the objections brought by the picture house and after a brief but considered review of that decision it was reiterated that while the courts are able to question the legal validity of executive decisions, they are not equipped nor predisposed to challenge the illegitimacy of those limitations unless the body in question has applied it powers outside the boundaries of reasonableness and in ignorance of the required objectives.

Relying upon the relevant case history behind these matters there was despite strong opposition by the commercial vendors, no precedent upon which their argument could stand and that it was important to hold in mind the scope of discretion afforded local authorities when following statute before taking up the courts time over a difference of opinion rather than issues of genuine public interest.

Key Citations

“…the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority.”

“If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.”

“…a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.”

“…the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose.”

“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.”

“The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.”

Direct effect compatibility and the obligation owed by Member States to transpose directives and Treaties as binding upon national laws, was a ruling that would soon unearth conflicts of interest. On this occasion the contention was brought about by aggressive amendment to statute in favour of the UK fishing industry.

Until 1988 those parties involved in domestic commercial fishing were required to register under the Merchant Shipping Act 1894; an act that allowed overseas companies to operate outside British waters but still have their fleets registered under UK incorporation. As a means of preventing ‘quota hopping’ (over-fishing) it was enacted by Parliament to include Part II of the Merchant Shipping Act 1988 and Merchant Shipping (Registration of Fishing Vessels) Regulations 1988 to the effect that all those trading were to re-register under new conditions.

These terms required that in order to qualify for registration the company must have a minimum of seventy-five percent British ownership and where ownership fell outside the United Kingdom there needed to be a seventy-five percent share hold by British citizens. This translated that the appellants who had been previously registered for over almost twenty years were now unable to re-register as the owners were Spanish and therefore exempt from the new legislation.

Having appreciated the United Kingdom’s position as a Member State and subsequent membership to EU Community law, the firm sought proceedings under the principle that the choice taken to exclude other EU members from registration had displayed an overt refusal to comply with art.177 of the EEC Treaty. Furthermore it was claimed that where community rights were held to have ‘direct effect’ it was the onus of the national courts to suspend challenged legislation with the granting of interim relief where proven necessary.

When heard in the Divisional Courts the claim was supported and provisions made to allow the unfettered trading of the claimants until such time that clarification was found in the challenge against the amended Act. However when appealed by the Secretary of State the Appeal Court set aside the previous finding while granting leave of appeal to the House of Lords. In this instance the House agreed that should the claimants fail in their argument, the financial damage would be sufficient enough to cause irretrievable damage to the firm but that without a preliminary ruling by the European Court of Justice (COJ) it was impossible to determine (a) if the courts were empowered to suspend legislative effect and (b) how best to determine what form the interim relief should take.

Upon deliberate consideration by the COJ it was unanimously agreed that when the objectives of direct effect were designed they were done so in a way that intended literal application with immediate purpose and that unless under exceptional circumstances, it was the duty of the national courts to hold the powers of Community law above those of domestic interest and that when matters required it they were to construe that any relevance for interim relief would by extension be both applied and agreed by the Member States themselves.

Key Citations

“…national courts are required to afford complete and effective judicial protection to individuals on whom enforceable rights are conferred under a directly effective Community provision, on condition that the Community provision governs the matter in question from the moment of its entry into force…”

“Interim protection is intended to prevent so far as possible the damage occasioned by the fact that the establishment and the existence of the right are not fully contemporaneous from prejudicing the effectiveness and the very purpose of establishing the right, which was also specifically affirmed by the Court of Justice when it linked interim protection to a requirement that, when delivered, the judgment will be fully effective…”

“To give priority to the national legislation merely because it has not yet been definitively established as incompatible with Community law (and thus to proceed on the basis merely of a putative compatibility) may amount to depriving the Community rules of the effective judicial protection which is to be afforded to them…”

“…under Community law, the national court must be able to afford interim protection, where the pre-conditions are met, to rights claim by an individual on the basis of provisions of Community law having direct effect, pending the final outcome of the proceedings, including proceedings on a reference to the Court of Justice for a preliminary ruling.”

“…that the national court’s duty to afford effective judicial protection to rights conferred on the individual by Community law, where the relevant requirements are satisfied, cannot fail to include the provision of interim protection for the rights claimed, pending a final determination.”

“…it is for the national court, obviously, to determine whether the preconditions for interim protection are met, but also that, in the absence of Community harmonisation, those preconditions must be and must remain those provided for by the individual, national legal systems.”

“…it is the legal system of each member state which determines the procedural methods and the preconditions for the interim protection of rights vested in individuals by virtue of provisions of Community law having direct effect, on condition that those methods and preconditions do not make it impossible to exercise on an interim basis the rights claimed and are not less favourable than those provided to afford protection to rights founded on national provisions…”

In a time following the great revolution it was taken by some occupying ministerial roles that powers typically reserved for the King and courts were equally applicable to his immediate servants. This included the presumed right to issue orders against those deemed offensive to the crown and that might seek to usurp its position through libellous acts.

When a number of gentlemen set about the formation of newspaper they were eventually seen to be acting with defamatory intent and so after the publication of certain articles a warrant for the seizure of the original works was issued by the Earl of Halifax who was acting Secretary of State. While the officers despatched were told to include the presence of a police constable, they instead acted alone and used force to enter the claimants property before causing significant damage to his property while searching for the relevant documentation. The second part of the warrant required that they brought the claimant and his papers before the Earl himself so that he could be examined and held to account.

Prior to the revolution there had been many abuses of power by those so appointed and the reemergence of the rule of common law had sought to prevent these flagrant ignorances in favour of equity and the rights of the citizens of the state. When the claimant sought relief for the damages caused it was argued by the defendants that (a) the Secretary of State reserved the right to execute summons in the interest of the crown and (b) that the defendants had subsequently acted within the rights contained within statute (24th of Geo. 2, c.44) and were therefore beyond reproach when carrying out the duties contained in the warrant.

When brought before the court it became clear that despite statute conferring certain protections against those undertaking certain duties under the instruction of the crown, there was no evidence to support either the Secretary of State or the officers assigned until it could be proven that the former was legally entitled to issue warrants. It was also evident that no police constable had accompanied the defendants as was requested and that the evidence gathered was then presented to an employee of the Earl and not the issuer himself who held no powers of delegation in such circumstances. To further add insult to injury it was also apparent that the man accused was not even responsible for the libellous comments and so the whole affair constituted nothing more than trespass and criminal damage.

Having closely evaluated the limitations imposed upon the Secretary of State it was agreed by the presiding Chief Justice that at no point in time had it been assumed that the post included magisterial or advisory rights other than to act within matters of high treason which supported their service as protectors of the public and the state. This translated that the Earl had acted well beyond his remit and that any such warrant was now void and unenforceable at law. With due consideration for the first point it then followed that the officers had been acting under illegality and were therefore guilty of trespass and breaking and entering and so award was granted in favour of the claimant.

Key Citations

“…if the Secretary of State had claimed any such power then certainly the Petition of Right would have taken notice of it; but from silence on that head we may fairly conclude he neither claimed nor had any such power.”

“…the whole body of the law seem not to know that Privy Counsellors out of Council had any power to commit, if there had been any such power they could not have been ignorant of it.”

“…if it appears that he hath power to commit in one case only, how can we then without authority say he has that power in other cases?”

“The Secretary of State is no conservator nor a justice of the peace, quasi secretary, within the words or equity of the Stat. 24 Geo.2 admitting him…”

“…our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground he must justify it by law.”

“…we can safely say there is no law in this country to justify the defendants in what they have done, if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have.”

“…if a man is punishable for having libel in his private custody, as many cases say he is, half the kingdom would be guilty in the case of a favourite libel, if libels may be searched for and seized by whomsoever and wheresoever the Secretary of State sees fit.”

“…we are no advocates for libels, all Governments must set their faces against them, and whenever they come before us and a jury we shall set our faces against them; and if juries do not prevent them they may prove fatal to liberty, destroy governments and introduce anarchy.”

While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases this protracted legal discourse reveals a number of indiscretions that in many respects served to influence legislative and educational policy in the United Kingdom and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.

After working as a supply teacher within the mainstream schools arena for a considerable number of years, an islamic man took issue with the government upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.

Citing art.9(1) of the ECHR (freedom of thought, conscience and religion) and art.14 (prohibition of discrimination) the applicant protested that s.30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm. Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours; the man had been given verbal allowances by one school and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need which until recently had never been expressed nor discussed at the time of his original appointment.

When it was submitted that the repeated failure of a muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under domestic jurisdiction and that those grounds along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties despite any inconvenience to teaching staff, pupils or the school as a whole.

After failing to find those arguments upheld in the domestic courts the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant; and that when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith and must therefore act accordingly.

Key Citations

“…even a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”

“…the applicant, of his own free will, accepted teaching obligations under his contract with the ILEA, and that it was a result of this contract that he found himself unable ‘to work with the ILEA and to attend Friday prayers’.”

“…the freedom of religion, as guaranteed by Article 9, is not absolute, but subject to the limitations set out in Article 9 (2). Moreover, it may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom.”